May 1, 2014 – A state appeals court has upheld a second offense cocaine possession conviction, despite the defendant’s argument that a prior conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO) did not involve controlled substances.

In 2005, federal indictment charged Guarnero and nearly 50 others with RICO violations, alleging conspiracy crimes as members of the Latin Kings gang in South Milwaukee. Eventually, Guarnero pled guilty to a one count RICO violation.

That specific RICO count alleged that Guernero and others were members of the Latin Kings crime organization who together engaged in distribution of controlled substances, among other crimes including murder and attempted murder, robbery and extortion.

The count to which Guarnero pled guilty also alleged that the gang’s racketeering activity involved the distribution of cocaine, crack cocaine, and marijuana.

Thus, the RICO violation was on Guarnero’s record when he was pinched on a cocaine possession charge in 2012. The circuit court found the RICO conviction was related to drugs, and counted it to convict Guarnero for second offense cocaine possession.

A second offense cocaine possession conviction is a felony. A first offense is a misdemeanor. Guarnero argued the RICO conviction was improperly counted.

His appellate lawyer noted that the RICO plea agreement contained no admission that the “defendant himself committed any violation of any narcotics statute.” He also noted that specific acts detailed in the Guarnero’s plea agreement were unrelated to narcotics.

But in State v. Guarnero, 2013AP1753-CR (April 29, 2014), a three-judge panel for the District I Court of Appeals ruled that Guarnero’s RICO conviction does count in determining whether he had previous crimes involving controlled substances.

The panel noted that Guernero engaged and conspired to engage in “racketeering activity,” which “includes activities involving controlled substances, such as cocaine.”

The panel also noted that in determining whether Guarnero committed a second offense cocaine possession, the applicable state statute, Wis. Stat. section 961.41(3g)(c), looks at whether he was previously convicted of a crime “relating to controlled substances.”

Guarnero argued he did not have fair warning that his RICO conviction could subject him to the repeater provision in section 961.41(3)g)(c), a violation of due process.

But the three-judge panel was not convinced. It concluded that RICO clearly includes controlled substance-related crimes among the types of activities that it prohibits, and Guarnero specifically pled guilty to a conspiracy involving controlled substances.